Clifford Thompson v. Jon Ozmint, No. 09-7516 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-7516 CLIFFORD THOMPSON, Petitioner - Appellant, v. JON OZMINT, South Carolina Department of WARDEN, BROAD RIVER CORRECTIONAL INSTITUTION, Corrections; Respondents - Appellees. Appeal from the United States District Court for the District of South Carolina, at Columbia. Henry M. Herlong, Jr., Senior District Judge. (3:08-cv-02794-HMH) Submitted: June 18, 2010 Before KING and Circuit Judge. AGEE, Decided: Circuit Judges, and August 5, 2010 HAMILTON, Senior Vacated and remanded by unpublished per curiam opinion. Clifford Thompson, Appellant Pro Se. Donald John Zelenka, Deputy Assistant Attorney General, Columbia, South Carolina, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Clifford Thompson, a South Carolina prisoner, appeals from the district court s order adopting the report and recommendation of the magistrate judge and denying his 28 U.S.C. § 2254 (2006) petition. We previously granted a certificate of appealability on the following issues: (1) whether the trial court s lack resolved by agreement of jurisdiction Thompson s involuntary, ineffective agreement. for over plea and two counts agreement (2) negotiating whether and of rendered trial recommending conviction the plea counsel was said plea After reviewing the subsequent briefing, we vacate the portion of the district court s order resolving these issues and remand for further proceedings. The State contends that these issues are procedurally defaulted due to Thompson s failure to raise the claims in state court. Procedural default occurs when a habeas petitioner fails to exhaust his state remedies and the state court would now find Mickens v. Taylor, 240 F.3d the claims procedurally barred. 348, 356 (4th Cir. 2001). When a procedural default occurs, federal review is barred unless the petitioner can show cause for his default and resulting prejudice, or actual innocence. Harris v. Reed, 489 U.S. 255, 262 (1989). also avoid the procedural bar by The petitioner may prov[ing] that failure to consider the claims will result in a fundamental miscarriage of 2 justice. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), cert. denied, 129 S. Ct. 162 (2008). In general, in South Carolina, absent sufficient reason for not raising a claim in a first [post-conviction relief ( PCR )] application or very rare procedural circumstances, [S.C. Code Ann.] § 17-27-90 2003] bars the claim in a successive application. [Rev. Matthews v. Evatt, 105 F.3d 907, 916 (4th Cir. 1997). Here, Thompson s counsel did not raise these claims in his initial PCR application. However, liberally construing his pleadings, Thompson did raise the claims in his pro se petition for relief to the Supreme Court of South Carolina, as well as in his § 2254 petition and his objections to the magistrate judge s report in district court. Nonetheless, neither the state court, magistrate judge, nor district court explicitly ruled on either Thompson s Further, potential because the default State or did the not merits raise of the the claims. default issue earlier, Thompson has not had an opportunity to show cause and prejudice or a miscarriage of justice. Accordingly, procedural or while substantive we express validity of no opinion Thompson s on claims, the we grant leave to proceed in forma pauperis and vacate the portion of the district court s order dismissing these claims and remand for a ruling on whether the specified claims are procedurally defaulted and, if not, the merits of Thompson s claims. 3 We deny Thompson s motions for appointment of counsel. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. VACATED AND REMANDED 4
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